Butler v. Social Security Administration

Filing 18

Order Remanding Case to SSA Administrative Law Judge. Signed by Judge Nannette Jolivette Brown on 8/25/14.(jrc)(cc:SSA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LYNDON BUTLER

CIVIL ACTION

VERSUS

NO. 13-2459

CAROLYN W. COLVIN, ACTING COMMISSIONER
SOCIAL SECURITY ADMINISTRATION

SECTION: “G”(3)

ORDER AND REASONS
Before the Court are Plaintiff Lyndon Butler’s (“Plaintiff”) objections1 to the June 9, 2014
Report and Recommendation of the United States Magistrate Judge assigned to the case.2 Plaintiff
filed this action pursuant to 42 U.S.C. § 405(g) for review of the final decision of Defendant the
Acting Commissioner of the Social Security Administration (the “Commissioner”) denying his claim
for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”).3 The
parties filed cross-motions for summary judgment.4 The Magistrate Judge recommended that
Plaintiff’s motion for summary judgment be denied, the Commissioner’s cross-motion be granted
and the case be dismissed with prejudice.5 Plaintiff objects, requesting that the case be reviewed de
novo and the claim be remanded to the Administrative Law Judge (“ALJ”) for a new hearing.6
Having considered Plaintiff’s objections, the cross motions for summary judgment, the Magistrate
Judge’s Report and Recommendation, the record, and the applicable law, for the following reasons

1

Rec. Doc. 17.

2

Rec. Doc. 16.

3

Rec. Doc. 1.

4

Rec. Docs. 12 and 15.

5

Rec. Doc. 16 at 1.

6

Rec. Doc. 17.

the Court will overrule Plaintiff’s objections in-part, sustain Plaintiff’s objections in-part, adopt the
Magistrate Judge’s Report and Recommendation in-part, reject the Magistrate Judge’s Report and
Recommendation in-part, reverse the ALJ’s decision and remand the matter to the ALJ.
I. Background
A. Procedural History
On October 12, 2010, Plaintiff filed a protective application for DIB under Title II of the
Act,7 alleging a disability onset date of June 14, 2010.8 Plaintiff alleged disability due to a back
impairment, a right hip impairment, diabetes, sarcoidosis, and blindness to the right eye.9 After his
application was denied by the Commissioner, Plaintiff requested a hearing before an ALJ, which was
held on October 27, 2011.10 Plaintiff and a vocational expert, Thomas Munea, testified at the
administrative hearing.11
On March 19, 2012, the ALJ issued a decision denying Plaintiff’s applications for benefits.12
The ALJ analyzed Plaintiff’s claim pursuant to the five-step sequential evaluation process.13 At step
7

42 U.S.C. §§ 405(g), 423, 1381(a).

8

Adm. Rec. at 118–20.

9

Id. at 154.

10

Id. at 28–58.

11

Id.

12

Id. at 9–27.

13

The five-step analysis requires consideration of the following:

First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled.
20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has
no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the
claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).

2

one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since his alleged
onset date.14 At step two, the ALJ concluded that Plaintiff has the following severe impairments:
“discogenic and degenerative disorders of the back; dysfunction of major joint; and blindness of the
right eye.”15 At step three, the ALJ held that Plaintiff did not have an impairment that meets or
medically equals the severity of one of the listed impairments under the regulations.16 At step four,
the ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform light work
as defined in 20 C.F.R. § 404.1567(b) except as follows:
lifting/carrying up to 20 pounds continuously (over 2/3 of an 8-hour workday); lift
and carry 21 to 50 pounds occasionally (up to 1/3 of an 8-hour workday); sit 4 hours
at a time for a total of 8 hours in an 8-hour workday; stand 2 hours at a time for a
total of 4 hours in an 8-hour workday; walk for 2 hours at a time for a total of 4 hours
in an 8-hour workday; continuous reaching in all directions, handling, fingering,
feeling, and pushing/pulling; frequent balancing; occasional climbing of ramps and
stairs, and using feet for operation of foot controls; no climbing of ladders, ropes or
scaffolds, stooping, kneeling, crouching, or crawling; continuous exposure to

Third, if an individual’s impairment has lasted or can be expected to last for a continuous period of twelve
months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed
impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d),
416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a
severe impairment, the claimant’s residual functional capacity and its effect on the claimant’s past relevant work are
evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant
is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant’s
age, education, and work experience are considered to see whether he or she can meet the physical and mental demands
of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be
found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide
certain tables that reflect major functional and vocational patterns. When the findings made with respect to a claimant’s
vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled.
Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969.
14

Adm. Rec. at 14.

15

Id. at 14–15.

16

Id. at 15.

3

humidity and wetness, extreme heat, and dust, odors, fumes, and pulmonary irritants;
frequent exposure to operating a motor vehicle; occasional exposure to moving
mechanical parts; no exposure to unprotected heights, extreme cold, or vibrations;
able to tolerate exposure to very loud noise such as a jackhammer; and work not
requiring binocular vision due to blindness of right eye.17
The ALJ concluded that Plaintiff could not perform his past relevant work.18 However, at step five,
the ALJ determined that given Plaintiff’s age, education, work experience and RFC, there were jobs
that existed in significant numbers in the national economy that he could perform, namely, that of
cashier, ticket taker, and interviewer/survey worker.19 Therefore, the ALJ denied Plaintiff’s
application.20
The ALJ’s decision became the final decision of the Commissioner for purposes of this
Court’s review after the Appeals Council denied review on February 25, 2013.21 On April 25, 2013,
Plaintiff filed a complaint seeking judicial review pursuant to Section 405(g) of the Act,22 and this
matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local
Rule 73.2(B). On August 1, 2013, the Commissioner answered the complaint.23
On September 9, 2013, Plaintiff filed a motion for summary judgment and memorandum
in support.24 Plaintiff argued that the ALJ erred by failing to: (1) make findings as to the severity of

17

Id. at 15–16.

18

Id. at 21.

19

Id. at 21–22.

20

Id. at 22–23.

21

Id. at 4–7.

22

Rec. Doc. 1.

23

Rec. Doc. 9.

24

Rec. Doc. 12.

4

Plaintiff’s diabetes; (2) consider Plaintiff’s need for a cane; (3) give deference to the opinion of
Plaintiff’s treating physicians; and (4) consider a closed period of disability.25 On December 2, 2013,
the Commissioner filed a cross-motion for summary judgment and memorandum in support.26
B. Report and Recommendation Findings
The Magistrate Judge issued his Report and Recommendation on June 9, 2014.27 The
Magistrate Judge found Plaintiff’s argument that the ALJ erred when she made no findings as to the
severity of his diabetes unavailing.28 He opined that the ALJ resolved Plaintiff’s claim at step five
of the evaluation process, noting that the Fifth Circuit has repeatedly held that step-two arguments
are irrelevant when the ALJ proceeds to subsequent steps of the sequential evaluation.29 He noted
that the ALJ recognized that Plaintiff has non-insulin dependent diabetes but ultimately concluded
that only three of Plaintiff’s alleged impairments are severe.30 Even assuming that Plaintiff’s
diabetes is severe, the Magistrate Judge found that any error in not listing it as a severe impairment
was harmless.31
The Magistrate Judge also found Plaintiff’s argument that the ALJ erred when she failed to
take into account his need for a cane unavailing.32 He opined that the ALJ’s RFC determination,

25

Rec. Doc. 12-2 at 2.

26

Rec. Doc. 15.

27

Rec. Doc. 16.

28

Id. at 6–7.

29

Id. at 7 (citing Chaparro v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987)(per curiam)).

30

Id. (citing Adm. Rec. at 15–21).

31
32

Id. (citing Chaparro, 815 F.2d at 1011).
Id.

5

which included significant limitations, took sufficient account of Plaintiff’s use of a cane.33 Further,
the Magistrate Judge noted that subsequent medical records contradicted Plaintiff’s need for a
cane.34 Accordingly, the Magistrate Judge concluded that the ALJ properly declined to assess the
additional limitations concerning the use of the cane, and substantial evidence supported the
limitations included in Plaintiff’s RFC.35
The Magistrate Judge addressed Plaintiff’s argument that the ALJ failed to give deference
to the opinion of his treating physicians.36 The Magistrate Judge found substantial evidence to
support the ALJ’s findings.37 The Magistrate Judge noted that the ALJ accorded a “Request for
Accommodations” form completed by Dr. Jones in September 2011 little weight because it
conflicted with the treatment notes indicating that Plaintiff was later recovering well from surgery
and exercising regularly.38 The Magistrate Judge also noted that the ALJ found Plaintiff’s complaints
of back pain and radiculopathy to Dr. Butler pre-dated Plaintiff’s October 2011 back surgery.39
Further, the Magistrate Judge found that substantial evidence supports the ALJ’s conclusion that Dr.
Rothaermel’s report indicated that Plaintiff’s impairments were not disabling.40 Accordingly, the
Magistrate Judge found that the ALJ properly accorded little evidentiary weight to the opinions of

33

Id. at 8 (citing Adm. Rec. at 15–16).

34

Id.

35

Id.

36

Id.

37

Id. at 10.

38

Id. (citing Adm. Rec. at 20).

39

Id. at 11 (citing Adm. Rec. at 18).

40

Id. (citing Adm. Rec. at 20).

6

Dr. Jones, Dr. Jones’s assistant Neil Delude and Dr. Butler.41 Further, the Magistrate Judge found
that the opinions upon which Plaintiff relied do not mandate a disability finding because, while the
opinions indicate that he could perform less than full-time work, the regulations state that part-time
work may constitute substantial gainful activity.42
Finally, the Magistrate Judge found that the ALJ did not err in failing to consider a closed
period of disability.43 He opined that there was substantial evidence to indicate that Plaintiff was not
disabled for a continuous period of twelve month.44 He rejected Plaintiff’s argument that he was
entitled to a closed period of benefits because treating physicians stated he could not perform fulltime work, noting that the regulations provide that part-time work may constitute substantial gainful
activity.45
II. Objections
A. Plaintiff’s Objections
Plaintiff timely filed objections to the Magistrate Judge’s Report and Recommendation on
June 15, 2014.46 Plaintiff contends an ALJ must find that an individual is disabled if he cannot
perform full-time work.47 He argues that the Magistrate Judge’s findings to the contrary are

41

Id.

42

Id. (citing 20 C.F.R. § 404.1572).

43

Id. at 12–13.

44

Id. at 13.

45

Id. at 13–14 (citing 20 C.F.R. § 404.1572).

46

Rec. Doc. 17.

47

Id. at 4. (citing Watson v. Barnhart, 288 F.3d 212, 218 (5th Cir. 2002)).

7

incorrect.48
Plaintiff objects to the Magistrate Judge’s finding that the ALJ adequately accommodated
his need to use a cane.49 Plaintiff notes that the ALJ found he could perform work that involved
sitting four hours per day and standing/walking for two hours per day.50 For the first time, Plaintiff
argues that the use of a cane could cause additional restrictions. He contends that during at least the
two hours period when he was walking, he would be required to hold a cane with at least one hand,
which would restrict his ability to reach, handle, finger, feel, push, and pull, activities the ALJ found
to be unrestricted.51 Therefore, he argues the ALJ should have “adopted corresponding limitations
in his residual functional capacity finding and hypothetical question [sic] to the vocational expert.”52
He contends the Magistrate Judge erred in finding that later medical evidence showing no need to
use a cane, arguing this is a determination for the ALJ not the reviewing court.53
Plaintiff objects to the Magistrate Judge’s finding that the ALJ properly accorded little
evidentiary weight to the opinions of Dr. Jones, Dr. Jones’s assistant Neil Delude and Dr. Butler.54
Plaintiff asserts that the ALJ failed to address all medical opinion evidence, as is required by law.55
He contends that the ALJ evaluated and explained the weight given to the December 6, 2011

48

Id. at 5.

49

Id. at 8.

50

Id.

51

Id.

52

Id.

53

Id.

54

Id.

55

Id.

8

medical source opinion of Dr. Rothaermel and the September 19, 2011 medical source opinion of
Dr. Jones, but did not acknowledge the June 2011 opinion of Neil Delude, P.A., the October 2010
opinion of Dr. Butler or the September 2010 opinion of Dr. Jones.56
Finally, Plaintiff objects to the Magistrate Judge’s finding that the ALJ did not err in failing
to consider a closed period of disability.57 Plaintiff contends that the ALJ reached no conclusion
regarding a period of closed disability and the Magistrate Judge improperly weighed the evidence
himself.58
B. The Commissioner’s Response
The Commissioner did not file a brief in opposition to Plaintiff’s objections despite receiving
electronic notice of the filing posted on June 15, 2014.
III. Standard of Review
A. Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to provide
a Report and Recommendation. A District Judge “may accept, reject, or modify the recommended
disposition” of a Magistrate Judge on a dispositive matter.59 The District Judge must “determine de
novo any part of the [Report and Recommendation] that has been properly objected to.”A District
Court’s review is limited to plain error of parts of the report which are not properly objected to.60

56

Id. at 6–7.

57

Id. at 9.

58

Id.

59

FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

60

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).

9

B. Standard of Review of Commissioner’s Final Decision on DIB Benefits
Under 42 U.S.C. § 405(g) the district court has the power to enter “a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”61 Appellate review of the Commissioner’s denial of DIB
benefits is limited to determining whether the decision is supported by substantial evidence in the
record and whether the proper legal standards were used in evaluating the evidence.62 “Substantial
evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”63 The Court must review the
whole record to determine if such evidence exists.64 However, the district court cannot “reweigh the
evidence in the record, try the issues de novo, or substitute its judgment for the Commissioner’s.”65
The ALJ is entitled to make any finding that is supported by substantial evidence, regardless of
whether other conclusions are also permissible.66 A court “weigh[s] four elements of proof when
determining whether there is substantial evidence of disability: (1) objective medical facts; (2)
diagnoses and opinions of treating and examining physicians; (3) the claimant’s subjective evidence
of pain and disability; and (4) his age, education, and work history.”67

61

42 U.S.C. § 405(g).

62

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir.
2002); Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
63

Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez, 415 F.3d at 461; Loza, 219 F.3d at 393; Villa,
895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983); Randall v. Sullivan, 956 F.2d
105, 109 (5th Cir. 1992)).
64

Singletary v. Bowen, 798 F.2d 818, 822-23 (5th Cir. 1986).

65

Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

66

See Arkansas v. Oklahoma, 503 U.S. 91 (1992).

67

Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).

10

The Court notes that both Plaintiff and the Commissioner have moved for summary
judgment. The standard of review applicable to such motions requires that a moving party establish
that there is no genuine issue of material fact such that the moving party is entitled to judgment as
a matter of law.68 Under 42 U.S.C. § 405(g), however, this Court may examine only the pleadings
and the record relied upon by the ALJ. Thus, there cannot generally be a disputed issue of fact
before the Court in Social Security appeals.69 Instead, “[t]he issue is whether the action of the
Secretary is supported by the Record.”70 The Fifth Circuit has regularly allowed district courts to
rule on Social Security disputes through the summary judgment procedure, when “the district court
has adequately reviewed the record and based its judgment on a finding of substantial evidence in
the administrative record.”71
IV. Law and Analysis
A. Law Applicable to Qualification for DIB
To be considered disabled and eligible for DIB, a claimant must show that he is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than twelve months.”72 The Commissioner has promulgated

68

FED. R. CIV. P. 56(c).

69

See Lovett v. Schweiker, 667 F.2d 1, 2 (5th Cir. 1981).

70

Id. (citing Igonia v. Califano, 568 F.2d 1383, 1389 (D.C. Cir. 1977)).

71

Id.; see also, e.g., Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (setting forth both the summary
judgment and substantial evidence standards of review).
72

42 U.S.C. § 423(d)(1)(A).

11

regulations that provide procedures for evaluating a claim and determining disability.73 The
regulations include a five-step evaluation process for determining whether an impairment constitutes
a disability, and the five-step inquiry terminates if the Commissioner finds at any step that the
claimant is or is not disabled.74 The claimant has the burden of proof under the first four parts of the
inquiry, and if he successfully carries this burden, the burden shifts to the Commissioner at step five
to show that the claimant is capable of engaging in alternative substantial gainful employment,
which is available in the national economy.75
B. The Magistrate Judge Erred in Applying 20 C.F.R. § 404.1572 to Evaluate Plaintiff’s RFC
Plaintiff contends an ALJ must find that an individual is disabled if he cannot perform fulltime work. He argues that the Magistrate Judge’s findings to the contrary are incorrect. On two
occasions the Magistrate Judge indicated that Plaintiff was not entitled to benefits because he could
perform part-time work.76 First, the Magistrate Judge found that the ALJ did not err in determining
Plaintiff’s RFC because the treating physicians’ opinions upon which Plaintiff relied do not mandate
a disability finding as they indicated Plaintiff could perform part-time work. Second, the Magistrate
Judge also rejected Plaintiff’s argument that he was entitled to a closed period of benefits because
his treating physicians stated he could perform part-time work. However, the Court notes that this
standard was not applied by the ALJ. The ALJ determined that Plaintiff had the RFC to perform
light work for eight hours a day with restrictions.77

73

20 C.F.R. §§ 404.1501 to 404.1599 & Apps., §§ 416.901 to 416.998 (2008).

74

Id. §§ 404.1520, 416.920; Perez, 415 F.3d at 461.

75

Perez, 415 F.3d at 461; Newton, 209 F.3d at 453.

76

Rec. Doc. 16 at 11, 13–14.

77

Adm. Rec. at 15.

12

Social Security Ruling (“SSR”) 96-8p provides that when assessing an individual’s RFC, the
ALJ must determine “the individual’s maximum remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis.”78 “A ‘regular and continuing basis’
means 8 hours a day, for 5 days a week, or an equivalent work schedule.”79 Therefore, under SSR
96-8p the ALJ must make the RFC determination on the basis of full-time work, as the ALJ found
not part-time work as the Magistrate Judge found.80
The Magistrate Judge’s Report and Recommendation relied on 20 C.F.R. § 404.1572(a),
which defines substantial work activity. 20 C.F.R. § 404.1572(a) provides, “Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid less, or have less
responsibility than when you worked before.”81 However, SSR 96-8p provides that an individual’s
RFC must be made on the basis of full-time work. Accordingly, the Court finds the Magistrate
Judge’s reliance on 20 C.F.R. § 404.1572(a) in evaluating the ALJ’s RFC determination to be
misplaced. In the instant case, there is simply no indication in the record that the ALJ based
Plaintiff’s RFC on his ability to perform part-time work and even if she did it would be incorrect.
The ALJ did not rely on 20 C.F.R. § 404.1571(a) in determining Plaintiff’s RFC. The ALJ

78

Social Security Ruling (SSR) 96-8p, 1996 WL 374184 * 2. The Fifth Circuit has noted that “[t]he Social
Security Administration’s rulings are not binding on this court, but they may be consulted when the statute at issue
provides little guidance.” Myers v. Apfel, 238 F.3d 617 (5th Cir. 2001). See also Alfred v. Barnhart, 181 F. App’x
447 (5th Cir. 2006) (citing SSR 96-8p).
79

SSR 96-8p.

80

SSR 96-8p notes that “[p]art-time work that was substantial gainful activity, performed within the past 15
years, and lasted long enough for the person to learn to do it constitutes past relevant work, and an individual who
retains the RFC to perform such work must be found not disabled.” This statement is does not apply to Plaintiff
because the record does not reflect that he performed part-time work within the past 15 years. Further, the ALJ did
not apply this standard in Plaintiff’s case.
81

20 C.F.R. § 404.1572(a).

13

determined that Plaintiff had the RFC to perform light work for eight hours a day with restrictions.82
Therefore, the Court will sustain Plaintiff’s objection to the Report and Recommendation, and
address Plaintiff’s objections related to alleged errors in the ALJ’s decision.
C. The ALJ’s Decision Properly Accounts for Plaintiff’s Use of a Cane
Plaintiff objects to the Magistrate Judge’s finding that the ALJ adequately accommodated
for his purported need to use a cane. Plaintiff argues that the use of a cane could cause additional
restrictions. Plaintiff cites Newton v. Apfel, where the Fifth Circuit stated, “The ALJ’s decision must
stand or fall with the reasons set forth in the ALJ’s decision, as adopted by the Appeals Council.”83
The ALJ included significant limitations to Plaintiff’s RFC: walking for two hours at a time
for a total of four hours in an eight-hour workday; frequent balancing; occasional climbing of ramps
and stairs, and using feet for operation of foot controls; and no climbing of ladders, ropes or
scaffolds, stooping, kneeling, crouching, or crawling.84 For the first time in his objections, Plaintiff
argues that the use of a cane could cause additional restrictions. He contends that during at least the
two hours period when he was walking, he would be required to hold a cane with at least one hand,
which would restrict his ability to reach, handle, finger, feel, push and pull, activities the ALJ found
to be unrestricted. Therefore, he argues the ALJ should have adopted corresponding limitations in
his residual functional capacity.
The Court notes that Plaintiff did not raise these additional restrictions before the ALJ, the
Appeals Council or the Magistrate Judge. The Supreme Court has held that “Claimants who exhaust
82

As discussed more thoroughly below, in determining Plaintiff’s RFC, the ALJ failed to consider all of the
medical evidence presented in the record. The Magistrate Judge incorrectly found that the ALJ did not need to
consider the medical evidence because it indicated that Plaintiff could perform part-time work.
83

209 F.3d 448, 455 (5th Cir. 2000).

84

Adm. Rec. at 15–16.

14

administrative remedies need not also exhaust issues in a request for review by the Appeals Council
in order to preserve judicial review of those issues.”85 However, the Magistrate Judges Act “does
not allow the parties to raise at the district court stage new evidence, argument, and issues that were
not presented to the Magistrate Judge—absent compelling reasons.”86 Plaintiff has provided no
reason for his failure to make these arguments before the Magistrate Judge. Plaintiff contends that
use of a cane would cause additional restrictions, but he points to no medical evidence in the record
to support his assertion. Accordingly, the Court finds no compelling reason to consider the
additional restrictions suggested by Plaintiff.
Plaintiff also contends the Magistrate Judge erred in finding that later medical evidence
showed no need to use a cane, arguing this is a determination for the ALJ not the reviewing court.
However, the ALJ did discuss this evidence, noting that Dr. Rothaermel’s report reflects that
Plaintiff “ambulated without any difficulty and without an assistive device.”87 Dr. Rothaermel did
not place any additional restrictions on Plaintiff’s activity due to use of a cane. The ALJ accorded
“great weight to Dr. Rothaermel’s opinion of the claimant’s functional abilities.”88 Further, the ALJ
noted that her conclusions regarding residual functional capacity assessment were “supported by the
medical opinions as discussed, testimony, and weight of the evidence when considered in its
entirety.”89 There is no medical evidence in the record supporting Plaintiff’s argument that use of

85

Sims v. Apfel, 530 U.S. 103, 112 (2000) (“Social Security proceedings are inquisitorial rather than
adversarial. It is the ALJ’s duty to investigate the facts and develop the arguments both for and against granting
benefits, and the Council’s review is similarly broad.”).
86

Cupit v. Whitley, 28 F.3d 532, 535 n. 5.

87

Id. at 19.

88

Id. at 20.

89

Id. at 21.

15

a cane could cause additional restrictions. Accordingly, the Court finds Plaintiff’s objection without
merit and adopts the Magistrate Judge’s finding that substantial evidence supported the restrictions
imposed by the ALJ in determining Plaintiff’s RFC.
D. The ALJ Erred in Failing to Evaluate All Treating Physicians’ Opinions and Failing to
Address Plaintiff’s Entitlement to a Closed Period of Disability
Plaintiff objects to the Magistrate Judge’s finding that the ALJ properly accorded little
evidentiary weight to the opinions of Dr. Jones, Dr. Jones’s assistant Neil Delude and Dr. Butler.
Plaintiff asserts that the ALJ failed to address the September 2010 opinion of Dr. Jones, the October
2010 opinion of Dr. Butler and the June 2011 opinion of Neil Delude, P.A. Plaintiff also objects to
the Magistrate Judge’s finding that the ALJ did not err in failing to consider a closed period of
disability. Plaintiff contends that the ALJ reached no conclusion regarding a closed period of
disability, and the Magistrate Judge improperly weighed the evidence himself. He contends that even
if his condition improved after his October 2011 surgery, he was still disabled between June 2010
and October 2011.
Although not conclusive, an evaluation by the claimant’s treating physician should be
accorded great weight.90 “A treating physician’s opinion on the nature and severity of a patient’s
impairment will be given controlling weight if it is ‘well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with ... other substantial evidence.’”91
“[T]he ALJ is free to reject the opinion of any physician when the evidence supports a contrary

90

Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994).

91

Martinez v. Chater, 64 F.3d 172, 176 (citing 20 C.F.R. § 404.1527(d)(2)).

16

conclusion.”92 However, “it is clear that the ALJ must consider all the record evidence and cannot
‘pick and choose’ only the evidence that supports his position.”93
In assessing Plaintiff’s RFC, the ALJ did not address several findings made by Plaintiff’s
treating physicians regarding his ability to return to work. The ALJ did not address the June 16,
2010 opinion of Delude that Plaintiff “cannot return to work at this point and will be able to return
to work after the [hip] surgery.”94 The ALJ failed to address that on October 6, 2010, Dr. Butler, who
treated Plaintiff’s back condition, opined that Plaintiff should not return to work.95 The ALJ noted
that on June 29, 2011, following his hip surgery, Delude released Plaintiff to “limited duty work,”
but the ALJ did not note that the June 2011 opinion only released Plaintiff to return to work for fourhour shifts, three times a week.96
“The RFC assessment must always consider and address medical source opinions. If the RFC
assessment conflicts with an opinion from a medical source, the adjudicator must explain why the
opinion was not adopted.”97 The ALJ explained why she gave little weight to the September 19,
2011opinion of Dr. Jones restricting Plaintiff’s activities.98 However, she gave no reasons for her
failure to consider the work restrictions imposed in the June 2010 opinion of Delude, the October
2010 opinion of Dr. Butler or the June 2011 opinion of Delude.

92

Id.; Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (citation omitted).

93

Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).

94

Id. at 17, 205.

95

Id. at 18, 259.

96

Id. 17, 325.

97

SSR 89-8p.

98

Adm. Rec. at 20–21.

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The Magistrate Judge found that “the ALJ properly accorded little evidentiary weight to the
opinions of Jones, Delude and Butler. Plaintiff’s argument focuses on opinions that he could perform
less than full-time work. But the regulations state that part-time work may constitute substantial
gainful activity.”99 As discussed thoroughly above, an RFC determination must be based on
Plaintiff’s ability to perform full-time work. Accordingly, the Court finds that the ALJ should have
considered the medical opinions of Delude and Butler in determining Plaintiff’s RFC.
Further, the ALJ did not address whether Plaintiff was entitled to a closed period of
disability. The law defines disability as the inability to do any substantial gainful activity by reason
of any medically-determinable impairment that can be expected to last for a continuous period of
not less than 12 months.100 Therefore, an ALJ should consider a closed period of disability if she
finds that a claimant was disabled for at least 12 consecutive months. “‘Procedural perfection in
administrative proceedings is not required’ as long as ‘the substantial rights of a party have not been
affected.’”101 If the ALJ erred in failing to state her reasons, the court must determine whether this
error was harmless.102
The medical records indicate that Plaintiff’s treating physicians placed restrictions on his
ability to work from June 16, 2010 through at least June 29, 2011, when Delude released Claimant
to perform part-time work. Absent some explanation from the ALJ to the contrary, Plaintiff would
appear to have met his burden of showing that he was disabled for at least 12 consecutive months.

99

Rec. Doc. 16 at 11.

100

See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505; Barnhart v. Walton, 535 U.S. 212, 218–20 (2002).

101

Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th

Cir.1988)).
102

Id.

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Therefore, Plaintiff’s substantial rights were affected by the ALJ’s failure to consider the medical
opinions and his entitlement to a period of closed disability. While it is not permitted to reweigh the
evidence, the Court finds that the ALJ did not apply the appropriate legal standards here.
Accordingly, the Court will sustain Plaintiff’s objection, and will remand to the ALJ pursuant to 42
U.S.C. § 405(g) for a new hearing and more adequate consideration of the record.
V. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Court OVERRULES Plaintiff’s objection related to
use of a cane and the Court hereby ADOPTS the Magistrate Judge’s recommendation on that issue;
IT IS FURTHER ORDERED that the Court SUSTAINS Plaintiff’s other objections
finding that the Magistrate Judge erred in applying 20 C.F.R. § 404.1572 to evaluate Plaintiff’s
RFC, the ALJ erred in failing to evaluate all treating physicians’ opinions and the ALJ erred in
failing to address Plaintiff’s entitlement to a closed period of disability. The Court hereby
REJECTS the Magistrate Judge’s recommendation on those issues;
IT IS FURTHER ORDERED that the case is REMANDED to the ALJ pursuant to 42
U.S.C. § 405(g) for a new hearing consistent with this Court’s Order and Reasons.
NEW ORLEANS, LOUISIANA, this ____ day of August, 2014.

__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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